Weekly Mass Torts Bulletin 2021-May-10

$7.1M Awarded To Three Military Veterans In 3M Earplug Lawsuit

A federal jury in Florida has issued an order indicating that 3M will pay $ $7.1 million in damages to three military veterans who suffered from hearing loss due to the defective earplugs that the company manufactured.

The trial was identified as a “bellwether” among the 300,000 lawsuits filed throughout the federal court system against 3M.

If 3M fails to negotiate hearing loss settlements for military service members, the company will face massive liability from the veterans who used 3M earplugs as standard equipment between 2003 and 2015. The verdict is expected to send shock waves through the financial industry, even though the jury award is yet to be declared.

The earplugs were designed to block all sound when inserted one way and reduce loud impulse sounds while allowing users to hear spoken commands when reversed. The litigations against the company allege that the earplugs are defective and did not seal the ear canal, resulting in permanent hearing loss, tinnitus, and other ear damage to the military veterans.

3M attempted multiple mid-trials to prevent the jury from deliberating a quick verdict in the lawsuit which was rejected by the jury. The jury awarded $2.1 million to each plaintiff in punitive damages. The plaintiffs were even awarded compensatory damages based on medical bills, pain, and suffering.

The company will face two additional trials, which are set to begin on May 17 and June 7. The trials involve one veteran each for the claims against 3M. However, the outcomes of the trials will not be forced on other plaintiffs in the litigation.

The Combat Arms Earplugs Version 2 (CAEv2) was manufactured by Aearo Technologies, Inc. before being taken over by 3M in 2008. The dual-ended 3M CAEv2 combat earplugs served as a standard form of military hearing protection in foreign conflicts for more than a decade, from 2002 to 2016.

The 3M military earplugs are made of green and yellow with a double-ended design. The green end is inserted to block all sound, and insertion of the yellow end reduces the sound of gunfire and explosives but still allowed the service personnel to be part of a conversation.

According to several lawsuits filed, the defective military earplugs cause two primary medical issues, tinnitus and hearing loss, mostly among veterans in the Navy and Air Force. The product was discontinued in 2015.

3M is expected to face thousands of individual trials in courts nationwide in the coming years. Recently, Bayer agreed to pay $10 billion to settle Roundup lawsuits, which was one of the largest settlements in U.S. history. However, considering the large number of claims faced by 3M, it is expected that the manufacturer will pay more damages as compared to Bayer.

All the 3M lawsuits are consolidated in federal multidistrict litigation (MDL) before U.S. District Judge Casey Rodgers in the Northern District of Florida for common discovery and pretrial procedures.

W.VA Claims Opioid Manufacturers Fueled The Opioid Epidemic

The first opioid crisis trial started in the federal court on May 3, 2021, where the communities of West Virginia claimed that narcotic painkiller manufacturers are responsible for numerous deaths across the country due to opioids.

West Virginia's Cabell County and its largest city, Huntington are the worst-hit areas due to the opioid epidemic. Cabell County's attorney summoned the principle of "Occam's razor" as it was the simplest and correct explanation for the trial.

The attorney even stated that though the MDL is the largest and most complex litigation in the history of the United States, the simple truth was that the manufacturer distributed the painkiller in huge quantity which resulted in the deaths of 1,100 people in Cabell County in the past decade.

According to a U.S census, the number of residents in the county has reduced from 96,000 a decade earlier to 92,000 in 2019.

The drug distributors, AmerisourceBergen Corp., Cardinal Health Inc., and McKesson Corp. are blaming the lawbreakers and regulators for the epidemic.

Currently, many lawsuits from cities and counties across the country have been filed in the MDL, which began in 2017. The drugmakers and pharmacies are also facing other bellwether cases, which will go for trial soon.

Attorney for AmerisourceBergen, an American wholesale drug company that had the largest market share in Cabell County for the distribution of hydrocodone and oxycodone, stated that the Drug Enforcement Administration (DEA) mishandled the reports of the manufacturers or maybe the reports went unnoticed. Counsel for Cardinal Health stated that the supplier adjusts its supply as per the demand of the health care industry in terms of narcotic painkillers, as well as the protective gear amidst the coronavirus pandemic. McKesson's attorney said that the people who use prescription and illicit opiates may also use illegal drugs such as cocaine for which the company cannot be blamed.

Earlier two opioid trials have been held in state courts outside the MDL where Oklahoma won a $465 million judgment against Johnson & Johnson (J&J) in 2019. J&J has even appealed for its defeat in the lawsuit. Another trial began last month that included California counties and several drugmakers.

J&J's First Talc Virtual Trial Begins In Seattle

A virtual trial conducted in Washington on May 04, 2021, alleged Johnson & Johnson's (J&J) talc cosmetic products contains asbestos, which resulted in a woman's fatal cancer.

It is one of the first virtual trials held to listen to the arguments regarding cosmetic side effects. The virtual trial is conducted as the courts have been closed since the last year because of the fear of Covid-19. The first attempt at the virtual talk with J&J was broadcast by Courtroom View Network (CVN) last year.

CVN will broadcast live and on-demand audio of the current study in Seattle. It will also record videos of the study, which will be stored as part of CVN’s test video library. Earlier, CVN reported a virtual asbestos trial in Seattle that resulted in a defense verdict.

Civil litigation is regularly conducted virtually in King County, which has made it one of the premier jurisdictions in the country. The trials conducted in King County could serve as a framework for virtual trials in other jurisdictions, drawing the attention of attorneys and judges across the country.

Attorneys stated that J&J was aware of the presence of asbestos in its talc cosmetic products, but never disclosed it in the public as it would have affected the sales of the products. The plaintiff's attorney said that overexposure to asbestos present in the talc products of J&J resulted in mesothelioma to the plaintiff.

The attorney did not even claim damages in the opening statement but informed the jury that the plaintiff underwent eleven surgeries and numerous rounds of chemotherapy and radiation due to cancer.

Attorney for J&J said that there is no scientific evidence that the company's talc products contained asbestos. He even claimed that products have been thoroughly tested and investigated over decades by scientists, but none of the conclusions supported that the products are contaminated with asbestos. The attorney even stated that J&J closely worked with federal regulators and Food and Drug Administration (FDA) to validate the safety of its products. He also said that the company funded studies to determine that talc miners are not at risk of mesothelioma.

The trial is expected to take three weeks and the CVN will provide a live and on-demand audio webcast of the trial. Judge Suzanne Parisien is overseeing the trial.

No Escape For Allergan In N.J. Lawsuits

Allergan Inc. can’t escape the lawsuits filed in New Jersey state court by plaintiffs who claim that the company's Biocell breast implants were defective, which caused in developing a type of non-Hodgkin's lymphoma among them.

The company appealed to dismiss the complaint by stating that some variants of the implant are protected under the U.S. Food Drug and Cosmetic Act. However, Judge Rachelle L. Harz denied Allergan's motion on preemption grounds.

In this multicounty litigation, the plaintiffs allege that the breast implants were defective and have a risk of developing breast implant-associated anaplastic large cell lymphoma, a subtype of non-Hodgkin's lymphoma.

As mentioned in Allergan's motion, the company claims that stricter regulations are necessary for the pre-market authorization system of the U.S. Food and Drug Administration.

Even the judge agreed with the company's claims that FDA approved the products, even after Allergan failed to conduct clinical studies and provided information during the pre-market approval process.

On March 19, U.S. District Judge Brian R. Martinotti, presiding over the federal Allergan Biocell breast implants litigation, ruled that Allergan, Inc. must face manufacturing defect, negligence per se, and other claims as they were not preempted.

According to a 121-page opinion, which was a response to the company's dismissal motion, Judge Martinotti tossed failure-to-warn claims and other allegations on preemption grounds but rejected the bid to knock out the class allegations over the Biocell textured breast implants.

The company had filed a supplemental brief on January 5 in the U.S. District Court for the District of New Jersey, asking the federal judge to dismiss claims against its breast implants because the consolidated lawsuits are preempted by federal law.

Breast implants are used in both breast augmentation surgery (to increase the breast size) and in breast reconstruction (to replace breast tissue that has been removed due to cancer or trauma or that has failed to develop properly due to a severe breast abnormality).

Allergan Inc.’s breast implants include saline and silicone devices used in breast augmentation and reconstruction. The company is one of the largest breast implant manufacturers in the world and started selling breast implants in 2006. Allergan’s flagship breast implant brand is Natrelle, but it also sells implants under its subsidiaries Inamed and McGhan. The manufacturer received approval from the U.S Food & Drug Administration (FDA) on 11/17/2006.

The popular product, its textured implants, is linked to a rare type of cancer called breast implant-associated anaplastic large cell lymphoma, or BIA-ALCL. The disease is a type of non-Hodgkin lymphoma.

On July 24, 2019, Allergan announced a global recall of Biocell textured breast implants and tissue expanders after the U.S. Food and Drug Administration (FDA) requested the recall.

The recall came after a rare type of cancer called anaplastic large-cell lymphoma (ALCL) has been linked to textured breast implants. Lymphoma is a cancer of the lymphatic system. Currently, 38 other countries have recalled this implant because of its link to ALCL.

The judge even laid some stricter regulations on pre-market approval of the products to prevent people from getting affected by the implants.

The plaintiffs' attorney even alleged that the company used a different scrubbing process, which was not in compliance with the FDA approval. Finally, the judge dismissed Allergan's motion for breach of express warranty and consumer fraud.